Whitmire v. Stephens
Filing
11
MEMORANDUM AND OPINION granting 7 MOTION for Summary Judgment with Brief in Support. This case is dismissed with prejudice. A Certificate of Appealability is DENIED. (Signed by Judge Keith P Ellison) Parties notified.(amwilliams, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MATTHEW DILLON WHITMIRE,
Petitioner,
v.
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CIVIL ACTION No. H-14-2490
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WILLIAM STEPHENS,
Respondent.
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MEMORANDUM OPINION AND ORDER
Pending before the Court are respondent's motion for summary judgment (Docket
Entry No.7) and petitioner's response (Docket Entry No. 10).
Based on careful
consideration of the motion, the response, the record, and the applicable law, the Court
GRANTS the motion for summary judgment and DISMISSES this case, as follows.
Petitioner, a state inmate proceeding pro se, filed this section 2254 petition to
challenge his disciplinary conviction for threatening to inflict harm on an officer. Petitioner
reports that he was punished with 200 days loss of good time, forty-five days loss of
recreation privileges, forty-five days loss of commissary privileges, 115 days contact visit
suspension, forty-five days cell restriction, and a reduction in line classification. He states
that his administrative appeals were denied and that he is eligible for mandatory supervised
release.
Prisoners charged with rule violations are entitled to certain due process rights under
the Fourteenth Amendment when a disciplinary action results in a sanction that will impinge
upon a liberty interest. Sandin v. Conner, 515 U.S. 472,484-87 (1995). Petitioner does not
have a protected liberty interest regarding his temporary loss of recreation, commissary and
contact visit privileges, his cell restrictions, or the reduction in line class status. See Madison
v. Parker, 104 F.3d 765, 768 (5th Cir. 1997); see also Malchi v. Thaler, 211 F.3d 953, 959
(5th Cir. 2000). In Texas, only sanctions that result in the loss of good time credits for
inmates who are eligible for release on mandatory supervision, or that otherwise directly and
adversely affect release on mandatory supervision, impinge upon a protected liberty interest.
ld. at 957-58; see also Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995).
Petitioner reports that he is eligible for mandatory supervised release. However,
respondent has submitted petitioner's prison records showing that petitioner is not eligible
for mandatory supervised release due to his convictions for attempted capital murder and
aggravated assault with a deadly weapon. Petitioner's conc1usory assertion that he is eligible
for mandatory supervision provides him no basis for habeas relief. Koch v. Puckett, 907 F .2d
524, 530 (5th Cir. 1990) (holding that mere conclusory allegations on a critical issue are
insufficient to raise a constitutional issue). Accordingly, his disciplinary conviction affords
him no basis for habeas relief as his allegations fail to raise a cognizable federal
constitutional habeas claim.
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Petitioner additionally contends that the disciplinary charge and conviction were filed
and obtained as the result of retaliation because he had requested a grievance form from the
charging officer. However, petitioner did not claim in his step I grievance that the charge
was filed against him in retaliation, and the claim is unexhausted. Regardless, petitioner fails
to establish that the disciplinary charge would not have been filed and the conviction
obtained but for a retaliatory motive. See Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir.
1995).
Petitioner's habeas petition is DENIED and this case is DISMISSED WITH
PREJUDICE for failure to state a cognizable habeas claim. A certificate of appealability
is DENIED. Any and all pending motions are DENIED AS MOOT.
Signed at Houston, Texas, on this the
d~fNovember, 2014.
~.4tQVQ~
KEITH P.
LISON
UNITED STATES DISTRICT JUDGE
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